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By now, all the copyright nerds in the world know the headlines: the Full Federal Court has handed down its decision in the iiNet case; that the appeal was dismissed in a 2:1 decision (Emmett and Nicholas JJ; Jagot J dissenting). Most people also will know that the reasoning is very, very different from the Trial Judge’s decision, and certainly contemplates, in a way that the Trial Judge didn’t, that in different factual circumstances an ISP could be liable for authorising infringement by its BitTorrenting users. The various major law firms have issued their summaries, I refer you there for an overview. Assoc Prof David Brennan from Melbourne Uni has expressed his succinct, and compelling view.

The decision is really long: it half looks like all three judges wrote as if theirs was to be the main decision (with others concurring or dissenting more briefly). A close reading reveals why. Although it is fair to say that the majority judges reach broadly the same conclusion on broadly similar grounds (namely, that the AFACT notices did not contain enough information to require action on the part of iiNet), they conceptualise the facts quite differently, and demonstrate important differences of approach. My early thoughts below the fold. This one’s for people generally familiar with the case and Australian copyright law though – beginners need to start, at least, with the law firm case notes.
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Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

ZDNet has some interesting discussion of different ISPs’ policies.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

On 28 July, the Australian Communications and Media Authority released its report which sets out the findings of the closed environment testing of ISP-level filters conducted in 2008. The Closed Environment testing report followed hot on the heels of the Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety report released in February 2008. The latest report shows that the filtering technology has definitely improved in terms of the accuracy of what it blocks and the impact it has on network performance since the NetAlert Ltd trial conducted in 2005. The conclusion, though, is that the filtering technology has not developed sufficiently to be able to tell the difference between legal and illegal and/or inappropriate content carried via non-web protocols (such as peer-to-peer and instant messaging).

The Internet Industry Association, CHOICE (the Australian Consumers’ Association), the Australian Library and Information Association (ALIA) and Australian Digital Alliance (ADA) have today expressed their concern about the possible contents of the ACTA negotiations that I’ve discussed a few times (most recently here). They have also agreed a set of six principles which, in their view, should guide the Australian approach to the negotiations:

1. Transparency and accountability (all stakeholders should see and comment on text before it is concluded)
2. Presumption of innocence (no enforcement, civil or criminal, without independent findings of infringement)
3. Proportionality (all enforcement measures to be proportionate to the seriousness of any infringement)
4. Consideration of impact on other treaties and laws (no doubling up or inconsistency with Australia’s existing obligations)
5. Avoiding the prescription of surveillance technologies for IP enforcement
6. Safeguards against liability for intermediaries (such as educational
   institutions, libraries and Internet Service Providers)

More detail in the principles document, which can be downloaded from the IIA or ADA.

Press releases:

1. IIA
2. Australian Digital Alliance
3. CHOICE

Note: I am a member of the board of the ADA.

More detail has now emerged on ‘three-strikes’ developments in the UK. ‘Three strikes’ refers to proposals currently doing the rounds – heavily pushed by various IP rights-owning organisations – to have ISPs monitor online copyright infringement (particularly P2P), warn users, and, if infringement persists, impose sanctions such as termination of service. The French have been drafting up such a scheme, it’s being pushed elsewhere (including here in Australia) and yesterday there were two significant developments in the UK:

1. The UK government announced a voluntary ‘Memorandum of Understanding’ between six UK ISPs and BPI (music industry body) and the Motion Picture Association; and
2. The UK Department for Business Enterprise and Regulatory Reform launched a consultation on ‘legislative options to address illicit Peer-to-Peer (P2P) File-Sharing.

There is already some online commentary: see Pangloss and the Open Rights Group [update: IAM Blog also has some commentary, as does IP Watch]. Some thoughts of my own over the fold. (more…)

The Times today is reporting that ‘[p]arents whose children download music and films illegally will be blacklisted and have their internet access curbed under government reforms to fight online piracy’. According to the report:

The measures, the first of their kind in the world, will be announced today by Baroness Vadera, who brokered the deal between internet service providers and Ofcom, the telecoms body…Britain’s six biggest service providers – BT, Virgin Media, Orange, Tiscali, BSkyB and Carphone Warehouse – have signed up to the scheme. In return, the Government has abandoned a controversial proposal to disconnect broadband services for users who had been caught out three times.

The scheme will, apparently, involve:

1. warning letters
2. sanctions – including “traffic management”, meaning a sudden curtailment of their internet speeds, and “traffic filtering”, a careful monitoring of the media files downloaded to an account to check whether they have paid for them.

The scheme does not, apparently, involve the passing on of personal information – BPI and copyright holders will not be given names.

I’m not sure what to think about that – on the one hand, it does get rid of some of the nastier aspects of some of the proposals that have been floating around (like termination of internet service, blacklisting and people being cut off for 12 months). On the other hand, and subject to seeing the details, it does seem to have all the problems of identifying the culprit, collective punishment, transgression of the presumption of innocence, and the imposition of sanctions without court review (see my previous comments here). It also doesn’t appear to be compulsory (in that not all the ISPs have ‘signed up’). Will await details with interest.

On further thought, I’m less and less comfortable with this. Maybe it’s those words – ‘management’, and ‘filtering’. We are, in effect, talking about the ‘management’ – and curtailing – of a fundamentally important communications medium, for the benefit of a particular industry, and with all the dangers that follow of doing exactly the same thing for other industries and interests. All to be done, it would appear, outside any finding by an independent, disinterested tribunal or court that there has in fact been mass infringement of a kind that would justify such a sanction. Yeah, my gut reaction is I don’t like it. In the end, there are important principles at stake here and they appear to be negotiated away by this deal. And I don’t think this is an end to it. But that’s just my view.

Several people have pointed out to me that according to the SMH, like the UK government,

[t]he Rudd Government is considering a three-strikes policy against computer users who download songs illegally.

According to the SMH,

The Government will examine new legislative proposals being unveiled in Britain this week to target people who download films and music illegally. Internet service providers (ISPs) there might be legally required to take action against users who access pirated material.
…
Communications Minister Stephen Conroy said the Government was aware of the views put by the music industry for a code of conduct for ISPs to address file-sharing by subscribers.
…
“We will also examine any UK legislation on this issue [including any three-strikes policy] with particular interest,” he said.

Now, admittedly, I’m an academic in Queensland – I’ve got no idea what is going on in Canberra. But it is worth noting that (a) it would be really weird if the Australian government did not ‘observe with interest’ what happens in the UK, (b) it would be equally weird if the Australian government did not ‘consider’ proposals put by industry, and (c) none of this is new – industry (in the form of MIPI most significantly) have been making this argument for some time (here, here.)

So I’m not presently feeling the need to spend a lot of time on this. Let’s just summarise the main problems with this approach, shall we? (more…)

Blogosphere is a-buzz with leaked news that the UK government might be considering requiring ISPs to monitor copyright infringement, and terminate repeat offenders. See Technollama, the IPKat, TechCrunch here, Boing Boing, Techdirt here, and the original Times Online here, . According to the Times:

Users suspected of wrongly downloading films or music will receive a warning e-mail for the first offence, a suspension for the second infringement and the termination of their internet contract if caught a third time, under the most likely option to emerge from discussions about the new law.

There has been a similar push in Australia by MIPI in particular; I’ve elsewhere (here and here) analysed the MIPI proposals and raised a number of questions about them (similar to the questions most of the blogosphere is raising). What I think is interesting about the UK developments is that it illustrates just how global this particular push is – looks like we have a coordinated (and more recently, more concentrated) push going on across a range of jurisdictions for a similar ‘notice and terminate’ kind of system. Here in Australia, though, it would be very ironic to see ‘Mr Broadband’ Kev Rudd legislating to switch off people’s internet contrary to presumptions of innocence and the like.

Frankly, too, it still seems like a proposal that is several years behind the trend of infringement. P2P is so, well, 10 years ago; bittorrent is used for all kinds of things (much more so than Kazaa or the like could ever claim), and the easiest way to ‘share’ copyright material is computer to computer.

Update: Open Rights Group put some of the problems well:

In most families, an internet connection is shared by the entire household – so if Dad gets the connection cut off for sharing movies online, suddenly Mum can’t run her business from home, and the kids can’t get access to the Web to do their homework. The Times estimates that there are 6 million people in the UK who share files illegally on the web. Any serious move towards disconnecting offenders is likely to play havoc with the Government’s ambition to foster an e-enabled society.

What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. And then industry will be back to square one.

Apropos of a recent post, the latest edition of the Internet Law Bulletin, has an article (or perhaps, more accurately, MIPI Press Release) by Sabine Heindl (General Manager, MIPI) on the issue of suing individuals for downloading or uploading music, and MIPI’s efforts to have ISPs engage in ‘notice and disconnection’ activities. It really doesn’t add anything to the material I explored in my last post, although this paragraph highlights a fact well known to people like me or Alex Malik, perhaps less well known to the general population:

‘The Australian music industry is now in a position to notify ISPs of the IP addresses of copyright infringers, namely those making available copyright-protected music for download on their networks.’

Yes, that’s right. They can see you.

The article pushes the same line we’ve seen in the materials highlighted in my previous post: ‘ISPs should disconnect users’ when they are repeat offenders. What the article doesn’t do is answer all those questions that we still have about any such proposal: (more…)

The case we all thought ended two years ago (Grokster, on the liability of the providers of the file-sharing software) continues at lower levels, with an interesting judgment on final orders, discussed by Ed Felten, and Jason Schultz (part 1, part 2).

Big issue in the case: what kind of injunction to order. Do you order the defendant to stop all infringements using their software? Some? who decides whether the system is ‘good enough’? Clearly, the court has struggled with this issue. It decided on an order that required steps to reduce infringement, but not 100% effectiveness.

This is all sounding very, very familiar. Kazaa redux, methinks.

The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
2. Techdirt have commented (‘the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
3. Boing Boing comments here (‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
4. Black comments here (‘I agree with Kim’)
   
5. The Age has the story here.

As you can see, the tenor of this commentary is – ‘shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)